February 22, 2013 | by Chris Johnson
DOJ calls on Supreme Court to strike down DOMA
Supreme Court, gay news, Washington Blade

DOJ filed a brief before the Supreme Court arguing DOMA is unconstitutional. (Washington Blade file photo by Michael Key)

The Obama administration on Friday argued that the Defense of Marriage Act  should be struck down by the Supreme Court because it “inflicts a vast array of…severe harms” on married same-sex couples.

In a 54-page legal brief, the U.S. Justice Department lays out its case for why it believes Section 3 of DOMA is unconstitutional — noting the harm the law causes married same-sex couples and the history of discrimination against gay and lesbian people — while arguing that DOMA should be subjected to heightened scrutiny, or a greater assumption it’s unconstitutional.

“The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples,” the brief states. “Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.”

The brief is signed by Solicitor General Donald Verrilli as well as Stuart Delery, the gay principal deputy attorney general who’s litigated against DOMA in oral arguments in lower courts. The lawsuit before the Supreme Court is known as Windsor v. United States, which was filed by the American Civil Liberties Union.

The brief enumerates several benefits that are withheld from married same-sex couples under DOMA, such as the denial of certain housing benefits for service members, the lack of Social Security survivor benefits and the inability of gay Americans to sponsor their foreign-born same-sex spouses for residency in the United States. It also notes plaintiff and New York widower Edith Windsor was forced to pay $363,000 in estate taxes upon the death of her spouse, Thea Spyer.

But the Justice Department also makes the case that laws related to sexual orientation should be subjected to heightened scrutiny because gay people have been subjected to a history of discrimination, citing bias in employment and immigration as well as vulnerability to hate crimes and police harassment.

Additionally, the brief contends DOMA merits heightened scrutiny because sexual orientation bears no relation on an individual’s ability to contribute to society and gays are a minority with limited political power.

“Historically, discrimination against gay and lesbian people had nothing to do with ability or performance, but rested instead on the view that they are, for example, sexual deviants, mentally ill, or immoral,” the brief states. ”Like gender, race,or religion, sexual orientation bears no inherent relation to a person’s ability to participate in or contribute to society.”

While asserting DOMA fails the test of heightened scrutiny, the Justice Department says it doesn’t challenge the law if a lower standard of rational basis review were applied. However, even under this standard, the brief maintains the law would fail under a more searching form of that review.

“To the extent sexual orientation may be considered to fall short in some dimension, the history of discrimination and the absence of relation to one’s capabilities associated with this particular classification would uniquely qualify it for scrutiny under an approach that calls for a measure of added focus to guard against giving effect to a desire to harm an ‘unpopular group,’” the brief states. “Section 3 would fail to satisfy any such analysis, largely for the reasons it fails heightened scrutiny.”

In addition to the merits brief, the Justice Department filed on the same day another brief addressing jurisdictional questions in the case. That brief responds to questions over whether the executive branch agrees DOMA is unconstitutional and whether the House Republican-led Bipartisan Legal Advisory Group has standing to participate. BLAG, following a party-line vote of 3-2, has taken up defense of DOMA in the administration’s stead.

In that 38-page brief, the Justice Department contends the Supreme Court has jurisdiction, but BLAG lacks standing to seek review of lower court decisions striking down DOMA.

“BLAG is an entity located within the Legislative Branch,” the brief states. “The Constitution assigns to that Branch only specifically enumerated ‘legislative powers.’ … Although Congress (and the individual Houses) may create offices to assist with legislative tasks, the authority of such an office may not include the ‘discretionary power to seek judicial relief’ on behalf of the United States.”

Also on Friday, other briefs were filed by the ACLU and BLAG in response to the jurisdictional questions in the case. In its brief, BLAG argues it can participate in the lawsuit, but the Justice Department doesn’t have standing to take part.

LGBT advocates have been calling on the Obama administration to file a similar brief in the lawsuit pending before the Supreme Court challenging California’s Proposition 8. As of Thursday, the White House hasn’t said whether the administration will file a brief, although President Obama said the solicitor general is “looking” at such action. The deadline for the Obama administration to file a brief in the case is Thursday.

In the DOMA case, the next step is for the ACLU to file its brief on the merits, which is expected on Tuesday. Oral arguments in the case are set for March 27 and justices are expected to render a decision before their term ends in June.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

14 Comments
  • Bravo….BUT if they fail to help kill Prop H8TE by filing a brief against it…and, thereby, ALL state laws banning marriage equality….a ruling against DOMA will be a hollow victory except for those married in the few states and DC that allow it.

    • But no matter where they live, the federal benefits will still be maintained, even if they lived in ohio but were married in DC. The federal government trumps the state in that respect and while they won't receive state benefits (which really aren't that much to be honest) they will receive federal.

    • SOOOOOOOOOO, missing the point, Mr. Hawk—tens of thousands [at least] MORE couples from the FORTY-ONE states that still don’t allow it will continue to have NO federal benefits unless they have the financial resources to travel to and from a state that does.

      • States set their own laws on who can get married. For example some have restrictions on age, gender, how closely related you are to your spouse, STD tests. Heterosexual cousins can get married in say Kentucky and then return home in Maryland and have their marriage recognized by the state and Federal government.

        Nine states and DC have opened up on who can marry to same-sex couples. If you don’t like the laws of a state you either who to change the law or you move. Same-sex marriage is now a winning issue at the polls. Stop believing what NOM says.

        I hope this helps.

  • The Prop 8 case won’t legalize gay marriage in all 50 states. DOMA is more important since it recognizes married couples Federally. That is all you need. 9 states and DC are not “few”. Gay marriage with full benefits will be available to 40% by the end of this year.

  • @ Millard: Balderdash! Overturning Prop 8 would gut any other state bans on marriage equality—after that, it would just be a matter of their rewriting their paperwork. [NB: there's no such thing as "gay marriage"—it's MARRIAGE, period]. As for your 40% will have benefits by the end of the year—ignoring the issue of your ability to predict what the Supremes will decide [could you give us all the next Super Lotto winning numbers, too?], those states which currently allow same-sex marriage, make up, along with DC, only 15.7% of the US population.

  • But when the hell will this country get it right. Everyone deserves their rights to be enforced.

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